Christian Louboutin, YSL Face Off in Appeals Court

A panel of three Appeals Court judges will soon determine the fate of the shoe firm's red-sole trademark.

NEW YORK — Christian Louboutin sat nervously at the end of a dark, wooden bench in the Daniel Patrick Moynihan courthouse in Manhattan Tuesday afternoon, listening attentively as his lawyers argued before a panel of three Appeals Court judges who will soon determine the fate of his red-sole trademark.

“For YSL and [its parent company] PPR Group, this might just be a legal matter, but that’s not the case for me,” Louboutin told WWD. “On the contrary, to me it is very personal: After all, this is an intrinsic part of my life and my company, which bears my name — and which I have built over the past 20 years and still independently own. This is why I had to be there in person.”

Louboutin was flanked by Diane von Furstenberg, a friend and president of the Council of Fashion Designers of America, who swooped into the courtroom wearing gold-rimmed aviators and a long black sparkly knit sweater over an off-white turtleneck and black skirt.

The French footwear designer was stoic as his lawyer, Harley Lewin of McCarter & English LLP, faced off against David Bernstein, lead counsel for Yves Saint Laurent.

At issue was whether a Manhattan Southern District judge came to the correct conclusion in August when he denied Louboutin a preliminary injunction, which would have stopped YSL from selling its red, monochromatic pump from the 2011 resort collection. In addition to siding with YSL, the lower court called into question the validity of the red-sole mark, which Louboutin obtained in 2008.

After Judge Victor Marrero delivered his verdict last summer, Lewin promptly filed an appeal, which led to Tuesday’s hearing before Judges José Cabranes, Chester Straub and Debra Livingston.

Standing before the grand, wood-paneled courtroom, Lewin said Judge Marrero “erred” because he viewed Louboutin’s mark as encompassing every shade of red, and not one shade of red, namely the brand’s signature Chinese red. As a result, Judge Marrero concluded that no one designer should have a “monopoly” on any color.

Lewin, who is also von Furstenberg’s lawyer and was introduced to Louboutin by the designer, told the judges: “We don’t claim anything but the mark as it is registered.”

When it was his turn to speak, YSL’s lawyer Bernstein of Debevoise & Plimpton told the judges, “Mr. Louboutin believes he’s an artist. He’s not a cobbler and we agree.”

Clad in a navy pin-striped suit, a frowning Louboutin gave a Gallic shrug as the rest of the courtroom, which was filled with a mix of fashionistas and lawyers, snickered.

“We make monochrome shoes,” said Bernstein, who argued that single-color design is integral to YSL’s DNA. “We don’t want to find out we can’t make red shoes.”

Periodically, the trio of judges interrupted both sides, inquiring not just about the red-sole trademark, but also criticizing Marrero’s opinion, which was only a positive for Louboutin.

“There are some far-reaching principles in this opinion,” said Straub. “What findings did he make to base this? I can’t find it. Show me where he recites in detail the basis for his holdings.”

According to Fordham Fashion Law professor Susan Scafidi, who was in the courtroom, such questioning doesn’t mean the judges will side with Louboutin, but if Marrero was present, he would have been “red-faced, had he been listening”

Now that the hearing is over, the judges will decide whether Marrero’s verdict stands, or if it will be reversed. If reversed, Louboutin and YSL will return to court to begin discovery in preparation for a trial.

“I was impressed by the way the judges ran the hearing,” Louboutin said. “The company remains confident that the appeals court will adhere to its conviction that the red sole, this integral and long-held part of the brand’s identity and recognized by consumers worldwide, will continue to be recognized as the Christian Louboutin trademark.”

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